HH: Joined now by the Smart Guys, Erwin Chemerinsky, Duke University Law School, John Eastman, Chapman University Law School. Yesterday, we just ran out of time, because it was at the end of the show. And we were discussing the Valerie Plame/Joe Wilson case, and Erwin Chemerinsky, of course, co-counsel to Wilson/Plame. John Eastman, just like me, a commentator on it. And we’ve just got to get to the central issue, Erwin. The central issue, allegation in your lawsuit is that Valerie Plame was outed by the administration, correct?

EC: Absolutely. It was…specifically, it was outed by Dick Cheney, Lewis Libby, Karl Rove, and we’ve named ten John Does, the other individuals who participated in this.

HH: And can you give me, to the best of your knowledge, the causation, how you saw that happening? When did somebody tell somebody who told somebody?

EC: Well, what our complaint alleges, which is to the best of our knowledge at this point, is that after Joseph Wilson’s op-ed piece appeared in the New York Times, there was, to quote the special prosecutor, a concerted effort on the part of, we believe, the Vice President, his top political aide, Lewis Libby, and Karl Rove, to reveal that Valerie Plame Wilson was a secret operative of the CIA as part of discrediting Joe Wilson.

HH: And do you believe that Richard Armitage is the person that tipped Robert Novak to her working at the CIA?

EC: I have no knowledge as to who the other John Does are. I’ll tell you that if we had known who they were, we would have named them in the lawsuit, because they were part of the violation of rights. I’ve certainly read the speculation in the media, but I would hardly say that I know that to be true, because we don’t know at this point.

HH: Will you be deposing Richard Armitage?

EC: At this stage, we haven’t even come up with a strategy for discovery. That’s obviously down the road. And I’ll always answer every question you ever ask me honestly, and the honest answer is we haven’t even talked about our discovery strategy yet.

HH: Have you talked about whether or not Armitage is the person that tipped Novak?

EC: What we’ve talked about is who should be the defendants. And so far as we know, based on what the special prosecutor said, what’s been in the media, everything we’ve been able to find, we know that Cheney, Libby and Rove, to the best of our knowledge, were involved in this. And we don’t know enough to name anybody else in good conscience as a defendant.

HH: Now John Eastman, the special prosecutor did not charge anyone with a crime. And it appears as though Erwin’s been sort of gliding over that glaring fact.

JE: Well, and I think the complaint glides over that as well. Nowhere in the complaint do they allege that any of the named defendants knowingly revealed her in violation of the law. That they disclosed her employment with the CIA is as close as the complaint alleges. But that, of course, doesn’t violate the law, unless they knew she was a covert operative at the time. And that allegation is not there. The second thing that’s important to realize here, and you pointed it out, Hugh, the special prosecutor had much broader access to the documentation with his subpoena power, and during the course of his investigation, and not a single charge that ties to this was brought by him. The only charge was that some of the statements made to the grand jury were inconsistent, and that’s what led to the indictment of Scooter Libby. But none of the underlying supposed crime was charged against anybody, which means the special prosecutor didn’t have enough evidence to go forward on that. And his investigation was much broader, and he had much greater access to this information than anything that the press has had, and this suit apparently has had.

EC: May I respond?

HH: Please.

EC: You said that I’ve glided over that we haven’t alleged something that was illegal. For a civil suit, as both of you know, we don’t have to allege or prove that anything illegal was done. What our complaint alleges is that there was a violation of 1st Amendment rights, because it was punishing Joe Wilson, because of a speech, that it was a denial of equal protection to Valerie Plame Wilson, that it violated the rights to privacy under the Constitution and under tort law, that there was a conspiracy to invade their civil rights. It’s all based on our allegations that these defendants revealed highly sensitive confidential information. You know in order to have a civil suit, there doesn’t have to be a criminal violation.

HH: Well, I agree with that, but I just wanted to get to the fact that the special prosecutor looked very, very hard for any violation of Valerie Plame’s rights as a CIA covert operative, and found none. Erwin, was she covert in your opinion?

EC: There is no doubt whatsoever that she was a highly covert operative for the CIA. And it seems to me that these are things that none of us can disagree with, no matter what our ideology is. She was a secret agent for the CIA. In fact, look at the D.C. Circuit opinion in the Judith Miller case, where Judge Tatel talked about how for 20 years she was doing secret operations at the CIA. And we also can’t reveal that her CIA secret identity was revealed starting with Robert Novak’s column. Now we can disagree all we want about who was responsible, and whether that leads to civil or criminal liability. But I think those starting facts aren’t ones we could disagree about.

HH: Had she taken the necessary care not to allow her identity be revealed? Because as I understand it, she was listed in social registers, and that it was easily obtained knowledge by Bob Novak’s account that she was at the CIA.

EC: Now whatsoever, and that’s not what Robert Novak said. Robert Novak said that once he was told that Joseph Wilson’s wife was a CIA agent, he then, using publicly available documents, could find out who his wife was. The fact that Joseph Wilson was married to Valerie Plame Wilson wasn’t secret. The fact that Joseph Wilson’s wife, Valerie Plame Wilson, was a CIA agent, was not known until Robert Novak published that column, destroyed her career, and also put in danger a lot of people who worked with her, who now, people will know, were working for the CIA.

HH: Now John, I want you to get a comment in, and I’ll come back with my next question.

JE: Well, my comment is this. I mean, a month or so ago, we had a great deal of go-around between the two of us about the appropriateness of the New York Times revealing ongoing covert operations of the CIA, that were clearly detrimental to our war effort, that were putting at risk that effort, and therefore, potentially, thousands of lives of civilians as well as military who are engaged in the war on terror. And yet Erwin, you took the position that that was a good thing to reveal that, because we ought to have a public debate. I suppose I could take the position here that it’s a good thing that Valerie Plame’s connection became known, because there was kind of this cabal inside the CIA of former Clinton holdovers, who were trying to undermine the administration’s efforts in the ongoing war. And it’s a good thing we have a public debate about that. That would be the same kind of argument. I’m not going to make that argument. I think it’s illegitimate. But I will say this. If somebody knowingly, knowingly outed a covert CIA operative, that person ought to be prosecuted. That’s why we had a special prosecutor looking into this. Nobody found any evidence of that whatsoever, and therefore, no charges were brought.

HH: Erwin, why did you not file an administrative claim under the Federal Torts Claim Act? I mean, isn’t this going to be dismissed for failure to do so? And doesn’t Plame, as a federal employee, have to file administrative remedies that have to be exhausted prior to any lawsuit? This is an argument raised by Brent Richardson, and I think it’s a good one.

EC: Right, and it’s one that we will obviously have to brief and argue. And our argument is that it’s the claims that we have raised, and we’re very careful what we’ve chosen. There was no need for her to bring them under the Federal Torts Claims Act against these defendants.

HH: John Eastman, do you agree?

JE: I don’t know enough about the technicalities of the Tort Claims Act on these particular claims to be able to answer it. I do recognize in a lot of instances, you have those administrative requirements first. I’m not sure that the particular Constitutional violation that Erwin has alleged here is one of those.

HH: Had you researched this before you filed it, Erwin?

EC: Yes, extensively.

HH: All right. Next question is…the allegation is that of course, Valerie Plame sent Joe Wilson on this mission. You’ve disputed that, right, Erwin?

EC: Very strenuously. I mean, what my clients have said, both publicly and privately, is that she had absolutely nothing to do with Joe Wilson being sent to see whether Iraq was buying Uranium from Africa.

HH: Absolutely nothing? No participation at all?

EC: That was her…that is exactly what she has said. And Joe Wilson sent a follow-up letter to the Senate committee clarifying that. And there have been other statements as well, including from within, I think, administration officials acknowledging that.

HH: And so if she had something to do with it, your case would take a big hit?

EC: Well, (laughing) you’re not going to get me to confess, gosh, if she did, that we would lose. I don’t believe we’d lose anyway. But I certainly believe here, her consistent statement that she did not participate in that process.

HH: Does the special prosecutor’s indictment of Libby give you pause?

EC: (pause) Well, I mean, what I can tell you is that she has said, and I think there is confirmation externally that’s already public, that she didn’t participate in those discussions.

HH: Have you read the special prosecutor’s indictment of Libby?

EC: Absolutely.

HH: And you saw there that he referenced her role?

EC: Right. But obviously, that’s disputed. And I mean, and most of all, it’s disputed by her, where she said she had nothing to do with those, and did not participate in those conversations.

HH: Peter Fitzgerald got it wrong?

EC: Well, if…again, I don’t have the indictment in front of me, but I certainly have read it several times. If it says she participated in that, she vehemently denies any participation whatsoever. Joseph Wilson, from as far as he knows, denies that she had anything to do with it, and I think there’s also been external confirmation of that.

HH: And have they been subpoenaed in the Libby case yet?

EC: I don’t know.

HH: If they are, is there going to be any attempt to suppress their testimony because of this lawsuit?

EC: I’ve had not discussion whatsoever about that. I honestly don’t know.

HH: John Eastman, any final comments on this?

JE: Well, my comment…I think whether she participated in the decision to go to Niger or not, I think is a little bit beside the point, although I agree. If, in fact, she was involved in that, it is a big hit on Erwin’s suit. But I think the further question is whether the key people in the administration had reason to believe that she was involved in that decision, and therefore had already opened herself up to the political debate, once he starts publishing in the New York Times some false statements about what his reports of those trips showed.